CHAPTER
SCHOOLS OF MUSLIM LAW
SCHOOLS OF MUSLIM LAW:
§ There are two main Schools of Muslim Law- The Sunnis and Shias.
§ Both sects are again divided into a number of schools, the majority of the Muslim are Sunni and hence it is presumed that the parties to a suit are sunnis unless proved otherwise.
§ As Tyabi says: “where it is not alleged, nor shown that the parties are shias, there is a presumption that they are sunnis, to which sect the great majority of Mohammedans of this country belong”.
§ Shia law is also the law of the land. In India Shia law has been applied to Shia since the decision of the privy council in Rajah Deedar Hossein v. Ranee Zuhoor-oon Nissa, case.
SHIA AND SUNNI DIVISION
§ After the death of the Prophet, there was a dispute regarding the manner in which his successor should be chosen. One group was of the opinion that the successor of the Prophet should be elected. This sect is known as the Sunni sect. Abu Bakr was elected as the first Caliph and was chosen to head the Muslim community. The Sunni sect supports the election method on the ground that the Prophet had himself suggested that his successor would be chosen by election.
§ However, some people, including the Fatima, the daughter of the Prophet, believed that the successor of the Prophet should be based on succession. This group constituted the Shia sect. This group declared Ali, the son-in-law of the Prophet to be the first Imam.
§ Thus After Muhammad’s death, Muslims faced a pivotal question: who should lead the community? Sunnis believed leadership should be determined by consensus, leading to the selection of Abu Bakr as the first caliph.
§ Conversely, Shia Muslims held that Ali ibn Abi Talib, Muhammad’s cousin and son-in-law, was divinely designated as his successor.
THUS, THREE SECTS ARE:
1. Sunni;
2. Shia; and
1. THE SUNNI SCHOOLS:
§ There are 4 different schools under the Sunni sect. These schools are based largely on the same principles and differ only on minor aspects. There are 4 sources of Muslim law. These 4 sources are the Quran, Ijma, Sunna and Qiyas. The differences in the 4 schools emerged because of the difference in the degree of reliance placed on the different sources. However, all the schools recognize the relevance and importance of all these 4 sources. The different schools of the Sunni sect are:
A. Abu Hanifa
B. Malik Ibn Anas
C. Mohammad Ash Shafei
A. Ahmad Ibn Hanbal
A. HANAFI SCHOOL
ORIGIN AND DEVELOPMENT OF HANAFI SCHOOL
§ Hanafi School is the first and the most popular schools in Muslim law. Before being named Hanafi, this school was known as Koofa School which was based on the name of the city of Koofa in Iraq. Later, this school was renamed as Hanafi School based on the name of its founder Abu Hanafee.
§ The Prophet had not allowed his words and traditions from being written, the Hanafi School relied on the customs and decisions of the Muslim community. Thus, Hanafi School codified the precedent which in prevalence during that time among the Muslim community.
§ The founder of this school Abu Hanafee had not written any book for laying down the rules of this school and therefore this school had grown through his two disciples- Imam Muhammed and Imam Abu Yousuf. Both of them gave to the Juristic preference (Isthi Hasan) and codified the Ijma’s (consensus or agreement) of that period.
§ This school became widely spread in various territories, as a result, the majority of Muslims in countries such as India, Pakistan, Syria, and Turkey belong to Hanafi School. In India, since the majority of Muslims are from Hanafi School, the Courts decide the case of a Sunni Muslim as per the Hanafi School unless it is specified that they belong to other schools.
§ In Hanafi School, Hedaya is the most important and authoritative book which was created over a period of 13 years by Ali bin Abu Baker al Marghinani. This book provides laws on various aspects except for the law of inheritance. Lord Warren Hasting tries to translate the Hedaya to English. He appointed many Muslim Scholars to translate the book.
§ But the Sirajiyya is considered as the authoritative book of the Hanafi Law of Inheritance. The book is written by the Sheikh Sirajddin, and the first English translation is written by Sir William Jones.
§ Under the Hanafi School, children are have an obligation to maintain their parents. Under indigent circumstances, the parents have the right to claim maintenance from their children. Similarly, the grandparents can also seek maintenance from the grandchildren. However, it is pertinent to note that the mother has a better title than the father when it comes to claiming maintenance from the children.
CUSTODY OF CHILDREN
§ Under the Hanafi school, the custody of a son lies with the mother until the son attains the age of 7 years. In case of a daughter, the mother has the custody till the daughter attains puberty. However, once the son attains 7 years of age or the daughter reaches puberty, the father is considered to be the natural guardian.
§ In Abdul Kalam v. Akhtari Bibi (1987), there was a dispute relating to the custody of a minor son. The parties were governed by the Hanafi School of Mohammedan Law. The mother claimed the custody of the child under Section 25 of the Guardians and Wards Act, 1890. Section 25 states that when a child is removed from his guardian’s custody and the court finds that the welfare of the child lies in him being restored to the custody of the guardian, the court may make an order to this effect.
The appellants had pleaded that since under the Muslim personal law, the father is considered to be the natural guardian of the Child, Section 25 of the Guardians and Wards Act does not apply to a Muslim Child.
§ Rejecting this argument, the Orissa High Court held that the interest of the child is of paramount consideration while deciding the issue of guardianship. The Court held that the Guardians and Wards Act applies to Muslims as well and thus, the mother was entitled to claim guardianship of the minor child under Section 25 of the Act.
LEGITIMACY OF CHILD
§ Both the Sunni as well as Shia schools provide that if a child is born within a specific time period from the dissolution of the marriage, then he would be considered valid. However, this time period varies from school to school. Under the Hanafi school, the child is considered to be legitimate if it is born within a period of 2 years from the dissolution of marriage.
B. MALIKI SCHOOL
§ This school gets its name from Malik-bin-Anas, he was the Mufti of Madeena.
§ During his period the Khoofa was considered as the capital of Muslim Khaleefa where Imam Abu Haneefa and his disciples flourished with Hanafi Schools.
§ He discovered about 8000 traditions of Prophet but complied only about 2000 of them.
§ When the disciples of Imam Abu Haneefa (Hanafi) codified their law based on Ijma’a and Isthihsan. The maliki school gives the importance to the Sunna and Hadis whereas the Hanafi school gives the importance to the people and Isthihsan.
§ As per Maliki School and Law, they rarely accept the Ijma’a. As per the Law, the person gave Fatwa challenging the sovereign authority of Khaleefa, he faced enmity and of lack of support from Muslim governments. Thus, this Maliki school did not get much popularity.
§ In India, there are no followers of this school but when the Dissolution of Muslim marriage act 1939 came in the picture, some of the laws and provision of this school was taken in account as they are giving more rights to the women than any other school.
§ In Hanafi School, if the women not get any news of her husband, she has to wait till 7 years for Dissolution of the marriage, whereas in Maliki School the women have to wait 2 years for Dissolution of the Marriage.
§ Mu-atha of Imam Malik is considered as the most authoritative book of the Maliki School. This book is also the first book written on the Hadis in Islam and this book is considered as the authority over all Muslims in the World.
§ Unlike the Hanifi school, the Malike school believes that traditions are the most important source of law. This school emphasizes that the rules of law should be based on traditions.
IMAM MALIK-IBN-ANAS
§ Imam was a lecturer on traditions and he was also a jurist. He is recognized as one of the most brilliant minds and he had vast knowledge of Sunna or traditions. Malik as well as other propounders of this school were also judges and solved the day-to-day problems of the people. Thus, the approach of this school was to make the law more practicable.
Imam relied on the traditions and usages of the Prophet to interpret the law. He also belived on the concept of muslahat which means public welfare.
LEGITIMACY OF CHILD
§ Under the Maliki school, a child born after the dissolution of the marriage is considered legitimate if it is born within a period of 4 years from the dissolution of the marriage.
§ It is interesting to note that Section 112 of the Indian Evidence Act, 1872 also deals with the legitimacy of a child born after dissolution of marriage. Under the Evidence Act, the child would be considered legitimate if it is born within a period of 280 days of the dissolution of marriage. Moreover, the mother should be unmarried at the time of the birth of the child.
§ Thus, we see that there may be a situation where a child may not fulfill the criterion of legitimacy laid down under the Evidence Act, but might still be recognized as legitimate under the Maliki school.
C. SHAFFIE SCHOOL
§ The Shaffie School gets its name on the name of Muhammad bin Idris Shaffie,
§ his period was between 767AD to 820 AD.
§ He was the student of Imam Malik (Maliki) of Madeena. Then he started working with the disciples of Imam Abu Haneefa and went to Khoofa.
§ He conclude the idea’s and the theories of Hanafi School and Maliki School in a friendly manner. The Imam Shaffie was considered as one of the greatest jurist of Islam. He created the classical theory of the Shaffie Islamic Jurisprudence.
§ According to this school, they considered Ijma’a as the important source of the Muslim law and provide validity to the customs of the Islamic people and follows more methods of Hanafi School. the main contribution of Shaffie School is the Quiyas or Analogy.
§ The Al-Risala of Imam Shaffie was considered as the only authoritative book of Islamic Jurisprudence.
§ In that book they discuss and interpret the Ijma’a (Consensus), Quiyas (Analogy), Ijthihad (Personal reasoning) Isthihsan (Juristic preference) and Ikhthilaf (Disagreement) in separate chapter in his book Risala. His other book Al-Umm is the authority on Fiqh (science of way of life).
§ The followers of Shafie School are spread in Egypt, Southern Arabia, South East Asia, Indonesia and Malaysia.
D. HANBALI SCHOOL
§ The Ahmad bin Hanbal is the founder of the Hanbali School.
§ He found the Hanbali school in 241 (AD 855).
§ He is the disciple of Imam Shaffie and supports Hadis.
§ He strongly opposed the Ijthihad (Independent reasoning by Islamic jurists) methods.
§ He introduced the theory of tracing the root of Sunna and Hadis and try to get the answer all his question.
§ His theory was to return to the Sunna of the Prophet.
§ When the Imam Shafie left for Baghdad, he declared that the Ahmad bin Hanbal was the only one after him who is the better jurist after him.
§ The followers of Hanbali school found in Syria, Palestine and Saudi Arabia.
IMAM ABU ABDULLAH AHMED-IBN-HANBAL
§ Imam Abu Abdullah Ahmed-Ibn-Hanbal established the Hanbali school. He was born in Baghdad. He was a rigid traditionalist and have utmost importance to the traditions. He considered traditions to be more important than the other sources.
§ Even though he rigidly relied upon the traditions, he interpreted the traditions in a liberal manner.
2. THE SHIA SCHOOLS:
§ As per Shia Sect, there are three schools of law. Shia Sect is considered as the minority in the Muslim world. They enjoy the political power only in Iran though they don’t have the majority in that state also.
A. ITHNA-ASHARIS
§ These schools are based on the following of Ithna-Ashari laws.
§ After the death of Imam Zainul Abidin, the majority, however, followed Imam Muhammad al-Baqir and after him Imam Jafar-as- Sadiq after the death of Imam Jafar the Sixth Imam a difference arose; the majority following Imam Musa al-Kazim and though him six other Imams, thus making twelve imams in all. Thus, ithna Asharis school of Shias was founded.
§ Ithna Asharis, an Arabic term, means Twelvers.
§ In India, they are next to Hanafis.
§ In Kashmir Itnna Asharis are in majority among Shias.
§ The followers of these schools are mostly found in Iraq and Iran.
§ In India also there is the majority of the shia muslim who follows the principles of the Ithna-Asharis School.
§ They are considered political quietists. This school is considered as the most dominant school of the shia muslims.
§ The people who follow the Ithna Asharis school believe that the last of the Imams disappeared and to be returning as Mehdi (Messiah).
B. THE ISMAILIS
§ The minority of the Shias, after the death of Imam Jafar did not acknowledge Musa-al-Kazim, but followed his elder brother, Ismail and are known as Ismailies.
§ They are also called “Sabiyya” or “Seveners” for accepting only seven Imams.
§ Originally this school prevailed in Egypt.
§ They believe that there were seven imams. and Ismail who was the seventh Imam formed this school.
§ In India, they consist of two groups, viz, the Khojas or Eastern Ismailis, representing the followers of the present Aga Khan, who is believed to be 49th Imam in the line of the prophet.
§ and the western Ismailis, who are popularly called Bohras and may be divided into Daudis and Sulaymanis and various other small groups.
§ The word “Bohra” merely means merchant and does not signify any particular school of Muslim law.
§ Ismailis are more open to the importance and role of women and less literal or strict and more tolerant in their view and practice of Islam.
C. ZAIDY
§ After the death of fourth Imam, Zaynul Abidin, one faction of the Shias accepted Zaydi, one of his sons, as Imam.
§ Thus, Zaidiyah school or sect was founded.
§ Zayd is the author of Majmu-ul-Fiah, but the work is available in spurious form. They are not found in India but found in South Arabia.
§ This sect is the most prominent in Yemen. The followers of this school are known for their political activism.
§ The beliefs of this school are closer to the orthodox Hanafi Sunni school and often rejected by Twelver Shia school.
§ They recognize the principle of an election as the basis of the succession and consider the Imam is nothing more than a ‘right guide’.
“EACH SECT IS GOVERNED BY ITS OWN LAW”
POINTS OF DIFFERENCE BETWEEN THE SUNNI AND SHIA SCHOOLS
1. LAW OF MARRIAGE-
§ Among the shias temporary marriage (Muta) is lawful but it is unlawful among sunnis.
§ According to the Shias only the father and grandfather are guardians for marriage, others are regarded as Fazuli or unauthorised persons and consequently, marriages contracted by the latter have no legal effect, unless ratified by the party concerned on attaining puberty.
§ On the other hand, The Sunnis recognize a long list of other guardians for marriage besides the father and the grandfather who can act as Wali-ul-Nikah, they being father, father’s father how highsoever, brother, other paternal relations, mother, potential uncle etc.
§ The Sunni law prescribes the presence of two male witnesses at the time of marriage which the Shia law does not deem it a necessary condition. The shia law requires the presence of two witnesses is not necessary at the time of divorce.
§ The Shias hold ten months as the longest period of gestation whereas the Sunnis two years(Hanafi). Under the Shia law the child will be presumed legitimate only if born within ten months from the dissolution of marriage.
§ Whereas under Sunni law a child born within two years of the termination of marriage is presumed to be legitimate.
2. DOWER—
§ Under Sunni law Ten Dirhams is the minimum amount of dower, whereas under Shia law there is no minimum limit fixed.
§ But under the Shia law ‘proper’ dower should not exceed 500 dirhams. Under Sunni law no upper limit is laid in any Case.
§ In Shia law, if there is no stipulation at the time of marriage whether dower is to be prompt or deferred the whole of it is presumed as prompt, But not according to Sunni law, the rule in sunni is to regard part as prompt and part as deferred, the proportion at each being governed by custom or by the state is of the parties and the amount of the dower.
3. DIVORCE (TALAQ)
§ Talaq under Sunni Law may be affected orally or by a written document.
Under Shia law a Talaq must be pronounced orally in the presence of two witnesses and a Talaq communicated in writing is not valid unless the husband is physically incapable of pronouncing it orally.
§ The pronouncement of Talaq under Shia Law, must be strictly in accordance with the Sunnat.
§ So Talaq-ul-Biddat is not recognised under it, whereas Sinni Law recognises it.
§ Under Sunni law, if the words of divorce used by the husband are express the divorce is valid even if it was pronounced under compulsion or in a state of voluntary intoxication whereas the Shia law does not recognise divorce pronounced under such circumstances.
1. MATERNITY—
§ Maternity under sunni law is fixed in the woman who gave birth to the child whether from the adulterous intercourse (zina) or of a valid contract of marriage.
§ The Shia in law, on the other hand, distinguishes between child of fornication and child whose mother was validly married before conception but her husband disavowed its parentage. In the case of latter, maternity is established in the woman while the former is deemed to have no mother at all.
§ Another consequence of the above is that the Shia Law does not permit mutual rights of inheritance between the mother and her illegitimate child, Under the Sunni law such child has got the right of inheritance from the mother and maternal relations who also inherit from the child,
2. GUARDIANSHIP—
§ The mother under Sunni law is entitled to the custody of a boy until he has completed the age of seven years and girl until she has attained puberty.
§ Under shia law, the mother is entitled to the custody of a boy until he attains the age of 2 years and a girl until she attains the age of seven years. In default of her, it belongs to the father and in default of him to the grandfather.
3. MAINTENANCE—
§ Under the sunni law the liability to maintain the father rests on his children.
§ The sons are liable even if the father is earning.
§ But under the Shia law it is not obligatory to maintain if the father is in a position to earn.
4. GIFT—
§ Under Sunni law A gift of undivided share (mushaa) in a property which is capable of division is irregular, unless some special conditions are satisfied.
§ Under Shia law a gift if an undivided share is valid, though it he a share in property capable of partition. Similarly, Shia law recognises a gift of property to two or more donees as valid.
5. WAQF
§ A Waqf inter vivos is completed under Sunni law by a mere declaration of endowment by the owner, whereas under Shia law a Waqf inter vivos cannot be created by a declaration. There must also be delivery of possession.
UNDER SUNNI LAW THE SETTLER
a. may provide for his maintenance out of the income of the waqf property.
b. may reserve the whole income for himself, for his life, or
c. may provide for the payment of his own debts out of the income of the waqf property.
§ Under Shia law the settler cannot reserve for himself a life-interest in the income of the waqf property or provide for the payment of his personal debts out of the income of the waqf property.
1. PRE-EMPTION
§ Sunni law recognizes three classes of pre-emptions- Shafi-e-khalit, shafi-e-sharik and shafi-e-jar.
§ Shia law recognises only one class of pre-emptors, that is, shafi-e-sharik (co-owners) and that too when there are only two co-owners. If there are more co-owners, there is no such right in the Shia Law.
(10) WILLS
§ A person under Sunni law cannot bequeath anything in favour of an heir except with the consent of the other heirs signified after the testator’s death.
§ whereas under Shia law no consent is necessary in the bequest does not exceed one-third, and where it does exceed, the consent of the heirs may be given even during the lifetime of the testator.
(11) INHERITANCE.
According to Sunni law there are three classes of heirs, namely, sharers, residuaries and distant kindred. Whereas under Shia law there are only two classes of heirs, sharers and residuaries i.e., heirs by consanguinity and heirs by marriage.
